Azimul Kabir vs Bangladesh (2002) 54 DLR 189

The fact of the case:

 
This is the case based on an unlawful detention. The detenu comes from a respective Muslim family and an established, reputed businessman as well. Furthermore, he is the joint secretary of the main opposition political party i.e. BNP. One day, while the detenu was coming from Sylhet by a domestic flight he was arrested from Zia International Airport by the police under sec-54 of the Code of Criminal Procedure 1898. He was seriously tortured by the police. He was thereafter sent to Dhaka Central Jail. The detenu was then ordered to be detained for 30 days under sec- 3(2) of The Special Powers Act, 1974, signed by the District Magistrate. This order was approved by the Government and the period of detention was extended for a further period of 3 months. The petitioner is the brother-in-law of the detenu.

Issue of the case:

Now it is the duty laid on The High Court Division to settle whether the detention was lawful or not. To observe the case, certain issues need to be solved here:

1. Why the detenu should not be brought before the court so that it may satisfy itself that he is not being held in custody without lawful authority and in an unlawful manner?
2. Whether there are any effective grounds to detain the detenu into custody?
3. Whether there is any misconduct in respect of the detenu or the intention is just to humiliate him or is there any political reason behind it?
4. The evidence or grounds submitted or shown by the respondent counsel has any material basis or not?
5. Whether the allegations have any merit or not?

Decision:

Since the grounds for detention are vague, unspecified, and indefinite and as such the detenu was prevented from making any effective representation to be considered for his release by the authority, the court directed to set the detenu at liberty forthwith added with some noble findings and recommendations.

Justification:

If any one of the grounds or reasons that led to the satisfaction is irrelevant, the order of the detention would be invalid even if there were other relevant grounds. Under the well-settled principle of law endorsed by a long line of judicial authorities, any person charged with the authority to make decisions affecting the rights and liberties of taking decisions of the citizens of the state has the corresponding duty of acting judicially and the superior courts having supervisory jurisdiction over such persons have the power to see whether the said person has confirmed to the judicial norms applicable to the case. The learned DAG opposed the rule and, of course, could not produce any material in support of the allegations made against the detenu. According to section 3, of the Special Powers Act 1974 on a reading of the grounds for detention and the secret file produced no nexus between the order of detention and the grounds supplied in support thereof is found. Nothing is found in the file based on which the detaining authority could derive satisfaction as to the necessity of detaining the detenu.

Case Law Referred:

 i.Abdul Latif Mirza vs Government of Bangladesh 31 DLR (AD) 1
ii. Ranbir Das vs The Secretary, Ministry of Home Affairs 28 DLR 48
iii. PLD 1959 (Daccca) 774
iv. AIR 1959 (SC) 179
v. AIR 1966 (SC) 740
vi. AIR 1970 (SC) 852
vii. Habiba Mahmud vs Bangladesh and others 45 DLR (AD) 89
viii. Golam Jilani vs Government of West Pakistan 19 DLR (SC) 403
ix. Abdul Baqui Beluch vs Pakistan 20 DLR (SC) 249
x. Government of West Pakistan vs Begum Agha Abdul Karim Shoris Kashirmiri 21 DLR (SC) 1
xi. Aruna Sen vs Government of Bangladesh 27 DLR 122
xii. Md Khair Ahmed vs Bangladesh and others 40 DLR 353  

Written by---
Tarek Bhuiyan
Department of Land Management and Law
Jagannath University, Dhaka

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